United States District Court, E.D. Michigan, Southern Division
ORDER ON MOTION TO DISMISS FOR FAILURE TO COOPERATE WITH DISCOVERY (Dkt. 21)
MICHAEL HLUCHANIUK, Magistrate Judge.
I. PROCEDURAL HISTORY
On January 4, 2011, Plaintiff Annie Patrice Goode filed a pro se one-page handwritten complaint against defendant Mercy Memorial Hospital, alleging that she was not allowed to return to work on crutches following a leave of absence, that her physician released her to return to work with no crutches, but that defendant failed to accommodate other restrictions. (Dkt. 1). Plaintiff appears to be alleging claims for disparate impact and intentional discrimination under the Americans with Disabilities Act ("ADA") and defamation. On June 23, 2014, defendant filed a motion to dismiss for failure to cooperate with discovery. (Dkt. 21). This motion was referred to the undersigned for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). Plaintiff responded to the motion to dismiss on June 26, 2014 (Dkt. 22), and defendant filed a reply brief in support of its motion on July 3, 2014. (Dkt. 25). On July 27, 2014, the Court informed the parties that the motion would be decided without oral argument pursuant to Eastern District of Michigan Local Rule 7.1(e). (Dkt. 27). This motion is now ready for determination.
II. FACTUAL BACKGROUND
In its motion, defendant asserts that on May 21, 2014, it served plaintiff with a notice scheduling her duces tecum deposition for June 20, 2014, allowing plaintiff 30 days to produce the requested documents. (Dkt. 21, Ex. 2). Plaintiff appeared for her deposition as scheduled on June 20, 2014, but a few minutes into the deposition, defense counsel asked plaintiff if she had ever been married, and plaintiff, who is currently unmarried, indicated that she had been married once before but refused to answer any questions about that marriage, including to whom she was married, when she was married, and the like. Defendant asserts that it does not know whether plaintiff's marriage ended in divorce or death, does not know whether the marriage began or ended recently or decades ago, and therefore does not know whether the marriage or divorce may refute plaintiff's claim that she suffers from emotional distress and that such distress was caused by defendant. Defendant then confirmed that plaintiff was seeking emotional distress damages and advised her that if she refused to answer questions, defendant would have to bring this to the attention of the Court. Defendant continues that a few minutes later, plaintiff again refused to answer background questions, this time regarding her current mortgage. Defendant asserts that plaintiff was terminated by defendant and asserts that she now lives on Social Security Disability benefits, and thus defense counsel was attempting to determine the level of financial distress, if any, plaintiff has suffered as a result of purported discrimination.
Defense counsel next asked plaintiff questions regarding potential witnesses to whom she had spoken regarding her claims. Plaintiff had identified several such individuals in her court filings, and most of these individuals are former employees of defendant. When defense counsel asked whether these individuals had ever indicated that they had experienced any problems working for defendant, plaintiff again objected, although after some time agreed to answer the questions. However, plaintiff started claiming that she did not know the answers because she suffers from "anxiety which causes short term memory loss."
Defense counsel then turned to the document production request. Plaintiff initially stated that she did not bring any documents in response to the request because "this does not have anything to do with my claims." Although, upon questioning, it turned out that plaintiff did have several pages of documents in her possession at the deposition, which she produced, it was also clear that she had documents (such as the Social Security report for which she produced the cover letter) at home. Defense counsel then asked plaintiff whether she had tax returns, which were requested but not produced. Defendant asserts that at this point, plaintiff became irate, stating that tax returns had nothing to do with her claims. When defense counsel asked if plaintiff was seeking damages for lost wages, she stated "no." Defendant states that it agrees that if plaintiff is not seeking lost wages, the tax returns are irrelevant. However, when defense counsel attempted to obtain confirmation that, although she had been terminated, plaintiff was not seeking lost wages, plaintiff began repeating that she was seeking damages for "defamation. ADA. Failure to accommodate. Stereotyping." Since lost wages are arguably available under defamation, ADA and discrimination claims, defense counsel attempted to confirm that plaintiff was not asking for lost wages. After repeating her statement several more times, plaintiff terminated the deposition after less than an hour. Defendant argues that plaintiff's failure to answer any questions at her deposition and refusal to comply with requests for documents warrants dismissal of her complaint as a sanction.
Plaintiff responds that she attended and cooperated in the deposition, but that defendant's attorney, Megan Norris, was unreasonably unprofessional when she questioned plaintiff by screaming and waiving her hands aggressively. Plaintiff further argues that Ms. Norris' questions were irrelevant and she claims that she left her deposition because the questions were irrelevant and caused her to have a panic attack and feel ill. She complains that defendant only sought questions regarding emotional distress damages and financial damages due to plaintiff's termination, and that such requests are not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff therefore requests that defendant's motion to dismiss be denied.
III. ANALYSIS AND CONCLUSIONS
Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), "[a] district judge holds a variety of [discovery] sanctions in his [or her] arsenal, the most severe of which is the power to issue a default judgment." Grange Mut. Cas. Co. v. Mack, 270 Fed.Appx. 372, 376 (6th Cir. 2008); see also Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995) ("a district court may sanction parties who fail to comply with its orders in a variety of ways, including dismissal of the lawsuit."); Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988) ("Dismissal of an action for failure to cooperate in discovery is a sanction of last resort."). The Sixth Circuit has articulated four factors for this Court to consider in determining whether the severe sanction of a default judgment or dismissal is appropriate: "(1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered." Universal Health Group v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013) (quoting United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)). "Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious conduct" id., i.e., conduct that is "perverse in resisting authority' and stubbornly disobedient.'" Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) (quoting Webster's Third New International Dictionary 497 (1986)). However, the pre-dismissal warning for failure to comply with the district court's orders is pivotal to the determination of willfulness. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988).
Here, with respect to defendant's request for dismissal as a sanction, the undersigned concludes that imposing such a sanction would be an abuse of discretion, given that no warning from the Court was given to plaintiff regarding the potential for dismissal if she failed to cooperate in discovery. As noted in Harris, the Sixth Circuit has "frequently reversed district courts for dismissing cases because litigants failed to appear or comply with pretrial orders when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal." Harris, 844 F.2d at 1256. No such order putting plaintiff on notice is contained in this record. And, in the view of the undersigned, plaintiff's conduct does not rise to the level of such bad faith or wilfulness that the sanction of dismissal is warranted.
However, some sanction is warranted for plaintiff's conduct during the deposition, and plaintiff should be given an opportunity to correct her failure to answer defendant's questions. Plaintiff complains that defendant's attorney was unreasonably unprofessional during the deposition and asked question regarding emotional distress and financial damages she believed were "irrelevant" to her claims. Federal Rule of Civil Procedure 30 permits a deponent to object during a deposition, but "the testimony is taken subject to any objection." Fed.R.Civ.P. 30(c)(2). An objection must be "nonargumentative and nonsuggestive." Id. And, a deponent may choose not to respond "only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under rule 30(d)(3)." Id. Under Rule 30(d)(3), a deponent may move to terminate or limit the deposition "on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent...." Fed.R.Civ.P. 30(d)(3)(A). If any person "impedes, delays or frustrates the fair examination of a deponent, " the court may impose sanctions, including reasonable expenses and attorney's fees incurred by any party. Fed.R.Civ.P. 30(d)(2). Although addressed specifically to the circumstance in which a deponent is represented by counsel, the provision applies equally to a deponent who is a pro se litigant, as here. See Ferrell v. Sparkman, 2007 WL 172516, at *2 n.1 (E.D. Tenn. Jan. 18, 2007).
First, regarding the conduct of defendant's counsel during the deposition, defendant has presented an affidavit from the court reporter stating that "at no time during this deposition was Megan Norris unprofessional or disrespectful nor did she scream, raise her voice or make aggressive gestures at Plaintiff or anyone else." (Dkt. 25, Ex. A). The undersigned listened to an audio recording of the deposition and reviewed the deposition transcript and agrees that Ms. Norris did not appear unprofessional or disrespectful during the deposition. Thus, the undersigned concludes that plaintiff has not presented an valid objection that the deposition was "being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses" plaintiff.
The undersigned does find, however, that plaintiff did fail to answer reasonable questions posed to her during the deposition. An evasive or incomplete answer is treated as a failure to answer. Fed.R.Civ.P. ...